U.S. v. CARSON

United States District Court, N.D. Illinois

May 28, 2004.

UNITED STATES OF AMERICA, V. DELPHINE CARSON

The opinion of the court was delivered by: BLANCHE MANNING, District Judge

MEMORANDUM AND ORDER

A jury found Defendant Delphine Carson guilty of all counts in a
three-count Second Superceding Indictment ("the Indictment") 
conspiracy to possess stolen goods (Count I) and possession of stolen
goods (Counts II and III). The present matter comes before this Court on
Carson's objections to the Pre-Sentence Investigation Report ("PSR") and
motion for downward departure. For the reasons set forth below and stated
in open court at the sentencing hearing, this Court OVERRULES the
objections and DENIES the motion for downward departure.*fn1

The Indictment charged Carson with conspiring to receive and receiving
and possessing stolen goods, which were stolen from a storage facility
and "constituted an interstate shipment of freight," in violation of
18 U.S.C. § 659, 371, and 2. Specifically, the Indictment charged Carson
with conspiracy to possess stolen leather jackets, air compressors, and
power tools. As part of its case-in-chief, the Government introduced a
video tape showing Carson discussing the purchase of these and other
stolen items. The United States Probation Office calculated the total offense level
for Carson using the 1998 United State Sentencing Guidelines ("the
Guidelines"):

Based on an offense level of 17 and a criminal history category of
I, the Guidelines provide for a sentence of incarceration between 24 to
30 months.

Carson objects to the 4-point increase under section 2B1.1(b)(4)(B) on
the grounds that she is not "a person in the business of receiving and
selling stolen goods" under the post-2001 version of the Guidelines,
which revised the definition of who qualifies for the subsection (b)(4)
enhancement. After reviewing both the 1998 and 2002 Guidelines, this
Court concludes that under both versions, Carson qualifies for the "in
the business of enhancement.

Under both the 1998 and post-2001 versions, section 2B1.1(b)(4)
provides for an enhancement "if the offense involved receiving stolen
property, and the defendant was in the business of receiving and selling
stolen property." Because the drafters of section 2B1.1(b)(4) initially
did not define the phase "in the business of," a split in the circuits
developed as to how to properly make such a determination. See Fed.
Sent. L. & Prac., § 2B1.1 (2004 ed.). The Seventh Circuit
adopted the "fence test," United States v. Braslawsky,
913 F.3d 466, 468 (7th Cir. 1990), while several other circuits used a
"totality of the circumstances" test. See United States v. Sutton, 77 F.3d 91, 95 n.5 (5th Cir. 1996). To
resolve this split, in 2001, the Sentencing Commission revised the
Guidelines by adopting the totality of the circumstances test.
See Amendment 617; Post-2001 Guideline Section 2B1.1(b)(4),
Application Note 4 (setting forth test).

Application Note 4 states that:

[f]or purposes of subsection (b)(4), the court
shall consider the following non-exhaustive list
of factors in determining whether the defendant
was in the business of receiving and selling
stolen property:

(A) The regularity and sophistication of the
defendant's activities.

(B) The value and size of the inventory of stolen
property maintained by the defendant.

(C) The extent to which the defendant's
activities encouraged or facilitated other
crimes.

(D) The defendant's past activities involving
stolen property.

Under the "fence test," the enhancement is appropriate where the
government shows that the defendant is a "professional fence," which is
defined as "persons who receive stolen property for resale" and thereby
"facilitates the commission of many thefts by creating a clearinghouse
for stolen goods " Braslawsky, 913 F.3d at 468.

Here, Carson's actions meet the requirements of both tests. The
evidence at trial showed that she took an active part in securing almost
$140,000 in goods she knew to be stolen and then striped some of the
goods of identifying marks to sell them in her store and on the street
from her van. The Government proved that Carson had a role in securing
the warehouse where the stolen goods were stored. Carson also met the two
trucks which delivered the pilfered merchandise and on at least one
occasion paid to have others unload the truck while she inventoried the
merchandise. Moreover, the videotape presented by the Government showed
Carson talking about how much it cost to steal trailers from shipping
yards and for how much she could sell "hot" leather jackets. Accordingly, this Court finds that Carson
operated a sophisticated operation to sell large amounts of stolen
merchandise and that she was experienced in this business and that her
actions encouraged and facilitated the theft of goods. Carson's objection
is thus OVERRULED.

Additionally, Carson seeks a downward departure on the grounds that
"the small loss significantly overstates the seriousness of Carson's
conduct." The Court denies this motion on the grounds that it does not
consider $138,821  the value of the stolen goods that Carson
conspired to possess and sell  to be a small loss. Moreover, the
Government was only able to recover two-thirds of the value of the goods,
leaving the victim with an actual loss of more than $45,000. CONCLUSION

For the foregoing reasons, this Court OVERRULES the Defendant Carson's
objections to the PSR and DENIES her motion for downward departure. It is
so ordered.

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